Vol. 13 No. 9 (September 2003)

SLAVE LAW IN THE AMERICAN SOUTH: STATE V. MANN IN HISTORY AND LITERATURE by Mark V. Tushnet. Lawrence: University Press of Kansas, 2003. 160 pp. Cloth $25.00. ISBN 0-7006-1270-X. Paper $12.95. ISBN 0-7006-1271-8.

Reviewed by Keith E. Whittington, Department of Politics, Princeton University. Email: kewhitt@princeton.edu

This is the latest addition to the Landmark Law Cases and American Society series published by the University Press of Kansas. The series is intended to provide short, readable books on important legal cases for students and for a general audience. This book, focusing on the 1829 North Carolina Supreme Court slavery case of STATE v. MANN, is admirably suited to that purpose and bears reading as well by scholars looking for a brief introduction to the issues surrounding the law of slavery.

Georgetown law professor Mark Tushnet is certainly appropriate to the task. In addition to his many works in constitutional theory, Tushnet has produced a number of studies in legal history, focusing particularly on the NAACP and Thurgood Marshall. His explorations of legal history began, however, with the law of slavery, culminating in his book, THE AMERICAN LAW OF SLAVERY, 1810-1860 (1981), which provided a theoretical Marxist account of antebellum slavery cases. That earlier book included an analysis of STATE v. MANN, the case to which he returns in the present work.

STATE v. MANN was perhaps the best known of the slave cases decided in the state courts. Judge Thomas Ruffin’s opinion in the case was held up by abolitionists as clear evidence of the impossibility of reconciling the system of slavery with the humanity of the slaveholders. Harriet Beecher Stowe made the opinion the centerpiece of her follow-up novel to UNCLE TOM’S CABIN (1852), and she praised Ruffin for his willingness to look candidly at the horror of the slave system and express clearly its central logic. Modern scholars have been attracted to the case for the same reason.

STATE v. MANN arose from John Mann’s appeal of his conviction for assault and battery on a hired slave, Lydia, whom he had shot during her attempt to flee from him to avoid punishment. Unlike some states, North Carolina did not have a statute regulating the treatment of slaves, and this was a common-law indictment. The trial judge had instructed the jury to convict if they found Mann’s actions to be “cruel and unwarrantable, and disproportionate to the offense.” In an opinion written by Ruffin, the North Carolina Supreme Court overturned the conviction, concluding that masters were not subject to indictment for assaulting their own slaves.

The notoriety of STATE v. MANN (1829) was more a function of Ruffin’s rhetoric than the court’s decision. Ruffin began with a classic formalist appeal:

A Judge cannot but lament, when such cases as the present are brought into judgment. It is impossible that the reasons on which they go can be appreciated, but where institutions similar to our own, exist and are thoroughly understood. The struggle, too, in the Judge's own breast between the feelings of the man, and the duty of the magistrate is a severe one, presenting strong temptation to put aside such questions, if it be possible. It is useless however, to complain of things inherent in our political state. And it is criminal in a Court to avoid any responsibility which the laws impose. With whatever reluctance therefore it is done, the Court is compelled to express an opinion upon the extent of the dominion of the master over the slave in North-Carolina (p.264).

A slave’s master could not, Ruffin argued, be held criminally liable for assault. Ruffin carefully distinguished such a case from that of a stranger and a slave, a parent and a child, or a master and an apprentice. In slavery alone, “The end is the profit of the master, his security and the public safety; the subject, one doomed in his own person, and his posterity, to live without knowledge, and without the capacity to make any thing his own, and to toil that another may reap the fruits.” As a consequence, “the power of the master must be absolute, to render the submission of the slave perfect” (p.266). This was the “curse of slavery,” but it was “inherent in the relation of master and slave” (p.267). The slave could not expect to appeal beyond the master to a court of law. “Mildness of treatment” would have to result from enlightened self-interest, community sentiment and statutory intervention, not from the general reasoning of the common law courts.

Tushnet provides an explanation of the case and sets it in a variety of different contexts and analytical frameworks. After a short introduction, Chapter One provides a brief overview of the relevant law of slavery. Chapter Two describes the case and opinion itself, the drafting of the opinion, and the legal context of such cases.

The next two chapters examine the opinion from the perspective of debates about slavery and legal history. Chapter Three situates the opinion in the context of the “moral-formal dilemma,” posed most directly by Robert Cover’s (1975) analysis of Northern judges. In connection to that central dilemma, however, Tushnet also considers Ruffin’s opinion in light of the economic analysis of slavery, conceptions of honor in the antebellum South, Southern religion, and the task of constructing a hegemonic ideology. Chapter Four places the case in a more biographical context. There is little known about the John Mann, Lydia, and case itself beyond what is provided in Ruffin’s opinion. As a consequence, the book cannot provide the usual drama of litigation that can often be found in works of this kind, but Tushnet sets the stage as much as possible and does draw upon and illuminate the daily dramas (and horrors) of slavery. Most of Chapter Four focuses on Ruffin. STATE v. MANN was decided at the beginning of Ruffin’s career on the appellate bench (he had previously served as a state legislator and trial judge), and Ruffin eventually garnered a reputation as “one of the finest common law judges in U.S. history” (p.74). Tushnet uses STATE v. MANN to help show why this was the case and to illustrate the common law style of reasoning and its concerns with policymaking (weaving in Morton Horwitz). He also considers how Ruffin’s opinion in this case resonated with the judge’s broader character and career ambitions in the context of the antebellum South.

The final two chapters turn to Harriet Beecher Stowe’s literary treatment of the case in her novel, DRED (1856). Chapter Five provides an overview of the relevant portions of the novel itself, Stowe’s treatment of the case, and its use within her argument about the future of slavery. Chapter Six considers the critical commentary on DRED. UNCLE TOM’S CABIN has not always been treated well by critics, but DRED has fared even worse. Tushnet is here interested in Stowe’s vision of slavery reform (which focused on non-institutionalized religious sentiment), and how it fits with the literary genre of “sentimental novels” of which DRED is an example and the abolitionist movement with which Stowe was associated.

Tushnet is effective in making the case and its context sensible to readers who may have little or no relevant background. The multiple frames of reference that Tushnet introduces in the book provide plenty of material for teachers looking to incorporate it into a variety of courses, and it can easily stand alone or be read in addition to other works of legal history. In a short book, Tushnet is both insightful and thorough, rendering complicated concepts clear in a few paragraphs. The chapters on Stowe are an interesting twist, and (though I found them somewhat less successful than the earlier chapters) law-and-literature scholars may find them particularly appealing. Like the other books in the series, SLAVE LAW IN THE AMERICAN SOUTH eschews formal citations and instead includes a useful bibliographic essay at the end.

REFERENCES:

Cover, Robert M. 1975. JUSTICE ACCUSED: ANTISLAVERY AND THE LEGAL PROCESS. New Haven: Yale University Press.

Stowe, Harriet Beecher. 1856. DRED, A TALE OF THE GREAT DISMAL SWAMP. Boston: Sampson and Company.

Stowe, Harriet Beecher. 1852. UNCLE TOM’S CABIN; OR, LIFE AMONG THE LOWLY. Boston: John P. Jewett and Company.

Tushnet, Mark V. 1981. THE AMERICAN LAW OF SLAVERY, 1810-1860: CONSIDERATIONS OF HUMANITY AND INTEREST. Princeton: Princeton University Press.

CASE REFERENCES:

STATE v. MANN, 13 N.C. 263 (1829).

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Copyright 2003 by the author, Keith E. Whittington.